Northern Ins. Co. of New York v. Molloy

• Decision Date: 19 December 1940
• Docket Number: No. 3754.,3754.
• Citation: 146 S.W.2d 231
• Parties: NORTHERN INS. CO. OF NEW YORK v. MOLLOY.
• Court: Texas Court of Appeals

Page 231

146 S.W.2d 231

NORTHERN INS. CO. OF NEW YORK v. MOLLOY.

No. 3754.

Court of Civil Appeals of Texas. Beaumont.

December 19, 1940.

Rehearing Denied December 31, 1940.

Appeal from District Court, Shelby County; T. O. Davis, Judge.

Action on fire policy by R. F. Molloy against the Northern Insurance Company of New York. From a judgment on a verdict for plaintiff, defendant appeals.

Affirmed.

J. R. Anderson, of Center, and Thompson, Knight, Harris, Wright & Weisberg, of Dallas, for appellant.

Sanders & McLeroy, of Center, for appellee.

WALKER, Chief Justice.

On the 30th day of July, 1939, certain household goods, etc., belonging to appellee, R. F. Molloy, situated in his home in the town of Timpson, Shelby County, and covered by a policy of fire insurance in the amount of $1,250, issued to appellee by appellant, Northern Insurance Company of New York, were destroyed by a fire, which also destroyed appellee's home. This suit was by appellee against appellant for judgment for the loss sustained by him in the fire. Appellant concedes that appellee's petition "sufficiently pleaded that the alleged loss by fire sustained by the plaintiff was not within any excepted liability of the defendant." Answering the questions which submitted the controlling issues plead by both appellant and appellee, the jury found the following facts: On the 20th day of July, 1939, appellee's home was destroyed by fire, which also destroyed the "personal property" covered by the insurance policy in evidence. The "actual cash value" of appellee's "personal property" situated in his house, and covered by the insurance policy in evidence, was $1,500. The jury did not "believe from a preponderance of the evidence" that appellee "procured the burning of the insured property", nor that his wife, Mrs. R. F. Molloy, "procured the burning of the insured property." On the verdict, judgment was rendered for appellee against appellant for the sum of $1,250 with interest at six per cent per annum from the 6th day of January, 1940, and costs of suit, from which appellant has prosecuted its appeal to this court.

We overrule the contention that the finding by the jury that appellee and his wife did not procure the burning of the property was against "the overwhelming preponderance of the evidence." At the time of the fire, appellee was confined in the reformatory at El Reno, Oklahoma, where he had been continuously from February 27, 1939, and Mrs. Molloy was visiting her sister in Henderson, Texas. There was no evidence connecting Mr. and Mrs. Molloy with the origin of the fire. On the undisputed evidence, the court could have instructed a verdict in their favor on that issue. As sustaining their contention, we give appellant's summary of the evidence on that issue:

"(1) The fire was of incendiary origin;

"(2) The assured was convicted of an offense involving fraudulent practice and confined in the United States Reformatory, where he received visits from his wife, the last being in June, and the fire occurring in July;

"(3) Shortly before the fire the assured's wife left the premises which burned, leaving behind a son-in-law who customarily resided with her and whom she regarded as her own son;

"(4) The son-in-law stayed in the house until the night before the night of the fire, and then left to stay with his wife's uncle;

"(5) On the night before the fire the son-in-law placed approximately three gallons of gasoline in open containers in the premises which burned;

"(6) Shortly before the fire the son-in-law requested permission of a local farmer to store some property on the latter's farm;

"(7) After such conversation and before the fire, furniture was, in fact, placed in a barn on the farm and then mysteriously taken away;

"(8) An original insurance policy sent the assured's wife for a lesser sum than the one sued upon was rejected by her;

"(9) The assured's wife turned black and fainted immediately upon being told by her son-in-law that a fire had occurred;

"(10) The assured's testimony was not offered to the jury by deposition;

"(11) The testimony of the son-in-law was not offered; and

"(12) The only substantial denial came from the assured's wife, who stated that she did not burn the premises, which were in Timpson, Texas, because at the time of the fire she was in Henderson, Texas."

The evidence did not show as a matter of law that the fire was of incendiary origin. That appellee was in confinement in the reformatory, that his wife visited him a short while before the house was burned, that his son-in-law stayed in the house while Mrs. Molloy was gone, that the son-in-law placed three gallons of gasoline in the house, that he requested a farmer for permission to store some property on his premises — the circumstances brought forward by appellant do not constitute a scintilla of evidence connecting Mr. and Mrs. Molloy with the fire.

We overrule the proposition that appellee offered "no evidence" on the issue of the "actual cash value" of the property destroyed in the fire. On that issue Mrs. Molloy gave the following testimony:

"Q. I will ask you to state whether or not that — is that the list you prepared? A. This is the list that I prepared right here.

"Q. Now you have various and sundry items on there and the value. Are you acquainted with the reasonable market value? A. Yes.

"Q. Were you acquainted with the reasonable market value of these articles on the 20th day of July, 1939, at Timpson, Shelby County, Texas? A. Yes.

"Q. Reasonable market value, Mrs. Molloy, is the value that an article might have in the market when one person wants to sell but does not have to sell and the other person wants to buy but does not have to buy? A. It is true.

"Q. Without asking each article, or about each article, the amounts that you set out in that statement there that you have in your hand, state whether or not you can say that they do represent the reasonable market value of those articles at the time of the fire? A. Yes.

"Q. And were each one of these respectively, worth the amount that is set opposite their name shown in that list there? A. Yes, sir.

"Q. Do you recall — can you state what the aggregate, that is, the total value of all the articles that were destroyed by fire was that you set out in your statement? A. Yes, sir.

"Q. How much was it Mrs. Molloy? A. About $1900.00 and some odd dollars.

"Q. It says here $1,947.70? A. Well, I knew it was around that.

"Q. All right, I will ask you to state whether or not that is approximately correct? A. Yes.

"Q. These items that you set out, these articles, are they articles that were covered by the policy of insurance at the time they were lost? A. Yes.

"Q. And you show a total down here, value of all the property that was destroyed of fourteen — I mean $1947.70. Would you say that represented or that that is the reasonable market value of those items? A. Yes.

"Q. That is the value at the time of the fire? A. At the time of the fire."

As against appellant's proposition, it would serve no useful purpose to summarize her testimony on cross-examination. Her direct testimony raised the issue of "actual cash value", and appellant has no proposition that the jury's finding on that issue was against the "overwhelming weight and preponderance of the testimony."

Appellant's liability under said policy was limited by the following stipulation: "This company shall not be liable beyond the actual cash value of the property at the time of the loss with proper deductions for depreciation, however caused."

The court submitted the issue of "actual cash value" by the following question and explanatory definition:

"What amount, if any, do you find from a preponderance of the evidence was the actual cash value, if any, at the time and place in question of plaintiff's personal property, if any, situated in said house and covered by the insurance policy in evidence, if any, and that was destroyed by said fire. Answer by stating in dollars and cents the amount, if any, you find.

"In connection with Special Issue No. 3 you are instructed that by the term `actual cash value', as used therein, is meant the amount of cash, if any, into which the property could have been converted at the time and place in question, the usual selling price at the place where the property was situated and at the time inquired about."

Against the court's definition of "actual cash value", appellant advances the following proposition: "Defining actual cash value as `the amount of cash into which property can be converted' and as `the usual selling price' constitutes reversible error."

The proposition is predicated on the following exceptions...